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Show NEW MEXICO 515 3. Surface Waters A New Mexico statute defines a watercourse as any river, creek, arroyo, canyon, draw, or wash, or any other channel having definite banks and bed with visible evidence of the occasional flow of water.32 The New Mexico court has likewise held that the flow of water need not be continuous in order for a channel to constitute a watercourse.33 3.1 Method of Acquiring Bights a. EARLY PROCEDURE There were a number of early statutory enactments which dealt with certain facets of the acquisition of water rights, including a procedure for filing notice after the right was initiated.34 However, the New Mexico court recognized that, prior to the adoption of the appropriation statute in 1907, a right could be acquired under the general law of appropriation as recognized in the West.35 Under this procedure, in order to accomplish a valid appropriation of water, there had to be a diversion and an application of the water to some beneficial use, and neither is sufficient without the other.36 The 1907 act provided that all claims which were initiated prior to the date of the act would be accorded a priority date relating back to the initiation of the claim, provided that the user diligently prosecuted his works to completion for the application of the water to beneficial use. Provision is made for recording a declaration of these pre-1907 rights, once recorded, the information is considered prima facie evidence of the right.37 Under the relation back doctrine, an appropriator was not limited by the area of land irrigated in the first years of his development, provided that he originally claimed a right for the entire acreage at the time the right was initiated, and then proceeded with reasonable diligence to apply the water to the area intended.38 In the settlement of many areas of New Mexico, the people fre- quently constructed joint irrigation ditches for their common water supply. These irrigation ditch organizations were commonly re- ferred to as community ditches or "acequias." The water rights of these organizations were protected by the territorial-and later by the State-government. Under a community ditch, the joint owner- ship of the ditch was separate and distinct from the ownership of the water rights. Each water right was considered appurtenant to the land and was owned by the owner of the property.39 New Mexico has enacted legislation relating to the construction, management, and operation of acequias, and which makes community ditches political subdivisions of the State.40 32 New Mexico Stat., sec. 75-1-1. MJaquez Ditch Co. v. Garcia, 17 N.M. 160, 124 Pac. 891 (1912). ^Hutchins, The New Mexico Law of Water Bights, 17 (1955). 85 Farmers' Development Go. v. Rayaldo Land & Irr. Co., 28 N.M. 357, 213 Pac. 202 (1923>. «Albuquerque Land & Irr. Go. v. Gutierrez, 10 N.M. 177, 6 Pac. 357 (1900). 37Hutchins, The New Mexico Law of Water Bights, 20 (1955) ; New Mexico Stat., sees. 75-1-2, 2.1, 2.2. 38 State ex rel. Community Ditches v. Tularosa Community Ditch, 19 N.M. 352, 143 Pac. 207 (1914). <*>Holmberg v. Bradford, 56 N.M. 401, 244 P. 2d 785 (1952). *o New Mexico Stat., sees. 75-14-1 to 61 and sees. 75-15-1 to 10. 499-242-73------34 |
